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07/26/93 JOHN C. CLYBURN v. 1411 K STREET LIMITED

July 26, 1993

JOHN C. CLYBURN, APPELLANT
v.
1411 K STREET LIMITED PARTNERSHIP, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)

Before Steadmen and Schwelb, Associate Judges, and Reilly, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: In this suit on a guaranty relating to a commercial lease, the trial Judge granted summary judgment in favor of the landlord, 1411 K Street Limited Partnership, against the guarantor, John C. Clyburn, in the amount of $16,326.68, together with interest, costs, and counsel fees. On appeal, the guarantor contends that summary judgment was improperly granted. We agree, vacate the judgment, and remand for further proceedings.

I.

At all relevant times, the guarantor was the Chairman of the Board and controlling stockholder of Career Business Academy, Inc. ("the tenant"). In 1987, the tenant had rented commercial premises from the landlord pursuant to a written lease. By early 1989, the tenant was in substantial arrears for rent due. The landlord and tenant instituted negotiations over the arrearage and, in July 1989, these negotiations culminated in the execution of a document denominated "First Amendment to Commercial Lease Agreement and Lease Guaranty," to which we shall refer as the "Agreement." The Agreement provided that the tenant would pay rent in the amount of $4,037.49 per month, and would vacate the premises on September 30, 1989. The parties agreed that if the tenant vacated, the lease would then terminate, and that "under no circumstances shall Tenant be permitted to or have any right to remain in the Retained Space after September 30, 1989."

The Agreement also included a "Guaranty of Lease" which was signed by the guarantor personally. The guaranty provided in pertinent part as follows:

the undersigned, absolutely and unconditionally guarantees to Landlord, its successors and assigns, with respect to the Lease, as amended, the payment of the rent and all additional rent required to be paid by Tenant under the Lease, up to the sum of $32,379.13 and the payment of all costs and expenses, including reasonable attorney's fees, incurred by Landlord in the enforcement of its rights under this Guaranty. The obligation of the Guarantor hereunder relates to all obligations under the Lease including past, present and future obligations whether or not currently in default. . . . It is understood that there are no conditions or limitations to this Guaranty except those written hereon at the date hereof. . . .

The dollar limitation -- $32,379.13 -- appeared in handwriting in the margin of the typed agreement; a larger sum ($52,487.40) had been crossed out.

It is undisputed that, following the execution of the Agreement but before the termination of the lease, the tenant paid in full the rent arrearage ($24,304.14), as well as two months rent, for a total of $32,379.13. Contrary to its obligation pursuant to the Agreement, however, the tenant failed to vacate the leased premises on September 30,1989. Instead, the tenant held over until February, 1990, but paid no rent for the months during which it held over.

The landlord then filed a suit in the Landlord and Tenant Branch of the Superior Court's Civil Division. The landlord secured a stipulated money judgment for $20,187.45 due and owing for rent and operating charges through the end of February 1990. Apparently unable to collect most of this money judgment from the tenant, the landlord then brought a separate civil action against the guarantor for the balance of $16,326.68, together with interest, costs and counsel fees.

In the new action founded on the guaranty, the landlord filed a motion for summary judgment. The guarantor opposed the motion, noting in an affidavit that his personal guaranty was limited to rental liability in the sum of $32,379.13, and that this amount had been paid by the tenant. He swore that no party had expected the tenant to occupy the property after September 30,1989, and that

it was never required by [the landlord] that I guaranty any future payments by CBA past that time frame, other than those amounts, nor did I intend to make any such future guaranty.

The Judge granted the landlord's motion for summary judgment, and subsequently denied the guarantor's motion to alter and amend ...


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